European Union Law

Alina Kaczorowska-Ireland

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138845879
• eBook ISBN: 9781317200079
• Topic: Law
• Subtopic: International Law
• Index: Law

The fourth edition of this well established and highly regarded work on EU law maintains its character by combining comprehensive yet accessible coverage with in-depth analysis of the law and student-friendly pedagogy. It is fully up to date so encompassing critical examination of new important judgments of EU and national courts and developments in institutional, constitutional and substantive EU Law.

The book keeps its unique style in that it is both a textbook and a casebook. Case summaries are highlighted in colour-tinted boxes for ease of reference, and are accompanied by key facts and critical analysis, often in the light of subsequent developments.

The student-friendly approach is enhanced by market-driven pedagogical features, including:

• Concise outlines, at the beginning of each chapter describing its content and assisting in revision;
• An aide-mémoire, often presented in diagrammatic form, at the end of each chapter to highlight and reinforce key points;
• End of chapter recommended reading lists to encourage and facilitate further research;
• End of chapter problem and essay questions testing the students' ability to apply what they have learnt;
• Cross-references to show how topics are interrelated; and
• A map identifying EU Member States, candidate States; and, potential candidate States.

The book's companion website offers a range of teaching and learning resources including an interactive timeline of the EU, useful web links, self-test questions and much more.

This book is essential reading for those studying EU law on both undergraduate and postgraduate courses and will be of interest to students of political science, social science and business studies.

Sources of EU law

DOI: 10.4324/9781315561035-4

Contents

• Chapter outline
• 4.1 Introduction
• 4.2 Primary sources of EU law
• 4.3 General principles of EU law
• 4.4 External sources which derive from international commitments of the EU
• 4.5 Secondary sources of EU law
• 4.6 EU acts not expressly mentioned in Article 288 TFEU
• 4.7 The contribution of the ECJ to the creation of sources of EU law
• 4.8 “Soft law” and the open method of co-ordination (OMC)
• Recommended reading
• End of chapter questions
• Aide-mémoire

Chapter outline

The EU legal system is structured and hierarchical. The sources of EU law and their hierarchy are as follows:

1. The primary sources are:
   • The founding Treaties: the EEC and the EA Treaties as amended by subsequent Treaties. Accordingly, after the entry into force of the ToL, the EU is founded on the TEU and the TFEU.
   • Protocols and annexes attached to these Treaties which form an integral part of them.
   • Acts of accession of new Member States.
   • Acts adopted by the Council, or the Council and the EP for the adoption of which approval by the Member States in accordance with their respective constitutional requirements is necessary, e.g. Articles 311 and 233(1) TFEU as well as amendments to the EU Treaties effected under the simplified revision procedures provided for in Article 48(6) and (7) TEU.
   • The CFREU (Article 6(1) TEU) (see Chapter 8).
   The primary sources are at the pinnacle of the hierarchy of EU law.
2. General principles of EU law refer mainly to a body of unwritten principles which underpin the EU legal order. In the hierarchy of sources, general principles are either part of primary sources or inferior to primary sources but above all other sources. Their ranking depends on their origin. Many principles are expressly mentioned in the Treaties and in the CFREU and are therefore clearly primary sources. The ECJ has recourse to general principles in order to supplement other sources of EU law.
3. External sources derive from international agreements concluded between the EU, and third States or international organisations. The EU has legal personality and as such is empowered to enter into international agreements. By virtue of Article 216(2) TFEU such international agreements are binding on the EU and the Member States, and form an integral part of EU law. In the hierarchy of sources they rank below primary sources and general principles of EU law but above secondary sources.
4. Secondary sources are legislative and non-legislative binding acts which the relevant EU institutions are empowered to adopt. Three types – regulations, directives and decisions – are binding; the others – recommendations and opinions – have no binding legal force. Secondary sources which are binding rank in importance below primary sources, general principles of EU law and law stemming from international agreements. The ToL established a hierarchy of binding secondary sources in that a distinction is made between those binding acts which are adopted on the basis of the Treaties and are referred to in Article 289 TFEU as legislative acts, and those binding acts which are adopted on the basis of secondary acts, i.e. on the basis of legislative acts. These non-legislative acts are either delegated or implementing acts.
5. Some EU acts not expressly mentioned in Article 288 TFEU are binding, some are not. If binding, their ranking depends on their object and material content.
6. With regard to the case law of the ECJ, there is no doctrine of precedent under EU law. However, for many reasons, the most important being legal certainty, the ECJ is reluctant to depart from the principles laid down in earlier cases. Thus, previous case law is important as it provides guidance for subsequent cases which raise the same or similar issues, but previous judicial decisions are not regarded as a complete statement of law and are not binding on national courts or on the ECJ. Thus, they cannot be formally regarded as a source of EU law. However, as the ECJ has established constitutional principles and important concepts of EU law in its judgments, which have subsequently become sources of EU law, its case law is indeed an important source of EU law.
7. Soft law can be described as “rules of conduct which in principle have no legally binding force but which nevertheless may have practical effect”. A new approach of the EU to soft law under which it becomes a hybrid between traditional soft law and hard law is a key element of the open method of co-ordination (OMC).

4.1 Introduction

The ECJ in Case 6/64 Costa v E.N.E.L. held that

“By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.”¹⁹⁵

Accordingly, the ECJ recognised the EU law system as unique, autonomous and distinct from international law, and from national legal systems of the Member States. The EU legal system, as any organised legal system, has its own sources of law, written and unwritten, and its own hierarchy of sources. Otherwise it would not be possible to classify it as a legal system.

Any organised legal system which is made up of various legal sources needs to establish a relationship of inferiority and superiority between them to ensure that inferior sources are compatible with superior sources. The EU legal system is no exception. It is hierarchical in nature. However, the Treaties, apart from establishing the hierarchy of secondary sources by drawing a clear distinction in Articles 289, 290 and 291 TFEU between legislative, delegated and implementing acts, do not establish any hierarchy of sources. It was the ECJ which defined the various sources of EU law as well as the hierarchical relationship between them.

With regard to soft law, it has no legally binding force but may nevertheless produce practical effect. When used within the OMC it facilitates convergence of Member States’ differing policies and may lead to creation of hard law.

4.2 Primary sources of EU law

The primary sources of EU law are examined below.

4.2.1 The founding Treaties and their amendments

The two founding Treaties are:

• the Treaty of Rome of 25 March 1957 establishing the EEC; it entered into force on 1January 1958;
• the Treaty of Rome of 25 March 1957 establishing the Euratom; it entered into force on 1January 1958.

Both founding Treaties were concluded for an unlimited period and have been amended many times. The most recent major amendments to the founding Treaties took place in December 2009 when the ToL entered into force. The only purpose of this Treaty was to amend the TEU and the EC Treaty which was renamed to become the TFEU. As a result, the ToL itself is not designed to have a lasting existence of its own. It does not constitute a third treaty. It contains only seven articles; however, the first two are very long as they contain amendments to the TEU and the EC Treaty (see , Chapter 1.13.3). The Euratom exists outside the ToL. It is “hanging on the side”. Protocol 2 annexed to the ToL contains changes to the EA Treaty and also provides that some provisions of both the TEU and the TFEU apply to the EA Treaty.

The founding Treaties, as amended (i.e. as contained in the TEU and the TFEU), are considered to be “the constitutional Treaties”. The idea that the founding Treaties establishing the three Communities are different from classical international treaties was recognised by the ECJ in Case 26/62 Van Gend en Loos,¹⁹⁶ in which the Court held that “this Treaty is more than an agreement which merely creates mutual obligations between the Contracting States” and that “the Community constitutes a new legal order of international law”, which creates rights and obligations not only for the Member States but more importantly for their nationals “which become part of their legal heritage”.

The EU is now founded on the TEU and the TFEU. Article 1 TEU states that “The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’). Those two Treaties shall have the same legal value.” The equality between the TEU and TFEU means that neither is subordinate to the other. Indeed, the separation of the two Treaties is formal rather than substantive in that both Treaties constitute one text, and no hierarchy as to their importance is established. The fusion of the EU and the European Community as well as the suppression of the pillar structure resulted in the disappearance of any frontiers between the two Treaties although special rules still apply to the CFSP (see Chapter 7). The EU courts have jurisdiction to interpret both Treaties, with exceptions concerning matters covered by the CFSP. Despite the fact that neither Treaty prevails, the TEU, which contains provisions on principles, values, fundamental human rights, objectives of the EU and provisions on the institutional framework of the EU, is essential to the interpretation of both Treaties, in particular of the TFEU which contains detailed provisions on the functioning of the EU. The same legal standing as that of the Treaties is granted to the CFREU in the light of which all provisions of both Treaties are to be interpreted, but subject to Protocol 30 (see , Chapter 8.4.4).

4.2.2 Protocols and annexes to the Treaties

In accordance with Article 2(2) of the Vienna Convention of 23 May 1969 on the Law of Treaties, Protocols and Annexes to the founding Treaties, or to Treaties amending the founding Treaties, have the same legal effect as the Treaties themselves. This is confirmed in Article 51 TEU, which states that: “The Protocols and Annexes to the Treaties shall form an integral part thereof.” The ECJ has confirmed many times the binding force of Protocols and Annexes.¹⁹⁷

The Protocols could have been incorporated in the Treaties. However, their existence saves the Treaties themselves from being too lengthy.

4.2.3 Declarations annexed to the Treaties

Sixty-five declarations have been annexed to the Treaties. Declarations are of various kinds: they may be made by the Conference which adopted the Treaty, by Member States or by a Member State, or EU institutions expressing their intention or views on a particular point. Declarations annexed to the Treaties are not legally binding as, unlike the Annexes and Protocols, they have not been incorporated into the Treaties by express provisions. In fact they are annexed to the Final Acts of the Conferences adopting them, and not directly to the Treaties. Under Article 31 SEA, and Article L TEU, declarations annexed to those two Treaties were expressly excluded from the jurisdiction of the ECJ. Accordingly, the ECJ had no power to interpret them.

The specific nature of EU law prevents declarations from acquiring any legal effect, or giving rise to an obligation: first, they cannot be classified as EU acts; second, they are not incorporated into any EU Treaties; and, third, they cannot restrict, exclude or modify the legal effect of the EU Treaties. In C-354/04P Gestoras,¹⁹⁸ the ECJ refused to give any legal effect to a declaration. In Case C-49/02 Heidelberger,¹⁹⁹ the ECJ held that declarations cannot be used to interpret a provision of secondary legislation, unless a specific reference is made in the wording of the relevant provision.²⁰⁰

It should be noted that the ECJ has compulsory jurisdiction to resolve any dispute between Member States falling within the scope of the Treaties and to provide clarifications on a particular point of law. Accordingly, the ECJ is the final arbiter on the rights and obligations of a Member State and would, if required, define them irrespective of the content of any declaration made by a Member State.

4.2.4 Acts of accession

Acts of accession are legally binding. They are similar, from the point of view of the legal effect they produce, to the Treaties.

4.2.5 Other primary sources

In some circumstances the Treaties provide that acts adopted by the Council or by the Council and the EP will not enter into force until approved by the Member States in accordance with their respective constitutional requirements. Examples of such acts are decisions relating to the system of own resources of the EU (Article 311 TFEU) and decisions concerning election to the EP by direct universal suffrage (Article 223(1) TFEU). B...

Table of contents

• Cover Page
• Series Page
• Title Page
• Copyright Page
• Contents
• Contents
• Preface
• Visual Tour of European Union Law Fourth Edition
• Table of Cases
• Tables of Treaties, Protocols, Declarations, EU legislative and Other Binding Instruments, and National Legislation
• Table of Abbreviations
• Glossary of Foreign Words
• 1 The history of european integration
• 2 Membership of the EU
• 3 The institutional framework of the EU
• 4 Sources of EU law
• 5 Legislative procedures in the EU
• 6 Competences of the EU
• 7 The common foreign and security policy (CFSP): a component of EU foreign action
• 8 Protection of fundamental rights in the EU
• 9 Supremacy of EU law
• 10 Direct effect of EU law
• 11 Indirect or interpretative effect of EU law
• 12 Direct applicability of EU law
• 13 The principle of state liability for breach of EU law
• 14 Preliminary rulings: article 267 TFEU
• 15 Enforcement of EU law – actions against member states
• 16 Direct actions against EU institutions, bodies, offices or agencies – part i articles 263, 277 and 265 TFEU
• 17 Direct actions against EU institutions, bodies, offices or agencies – part ii action for damages: non-contractual liability of the EU under article 340(2) TFEU
• 18 An introduction to the internal market of the EU
• 19 Abolition of customs duties and charges having equivalent effect to customs duties (CEEs)
• 20 Prohibition of discriminatory internal taxation
• 21 Prohibition of quantitative restrictions (QRs) and measures having equivalent effect to quantitative restrictriction (MEQRs) – articles 34 and 35 TFEU
• 22 Derogations from articles 34 and 35 TFEU listed in article 36 TFEU, and justifications based on mandatory requirements
• 23 Citizenship of the EU
• 24 Free movement of workers
• 25 The right of establishment and the right to supply and receive services
• 26 Exceptions to the free movement of persons
• 27 Introduction to EU competition law
• 28 Article 101 TFEU
• 29 Article 102 TFEU
• 30 Merger control
• 31 Enforcement of articles 101 and 102 TFEU
• 32 The area of freedom, security and justice (AFSJ)
• Index